This case is about Charter remedies. In litigation, remedies are often what defines the real-world effectiveness of a given right. A common saying in the law is that “a right without a remedy is no right at all”.

Here, in a criminal proceeding, while providing disclosure to an accused person, the Crown inadvertently disclosed potentially identifiable information of some confidential informants. This put the safety and lives of the informants at risk. The informants brought an action against Canada seeking damages (monetary remedies provided by the court) for both negligence and Charter violations. At trial, the Crown was found liable and ordered to pay both types of damages.

On appeal, the BC Court of Appeal found that Charter damages should not have been awarded because the damages for negligence were sufficient to address all of the breaches. The Charter damages award was overturned because it would amount to “double compensation”.

BCCLA is intervening at the Supreme Court of Canada to argue that Charter damages will result in double compensation only where they truly serve the same purpose as other forms of damages. Charter damages advance societal interests that private damages do not. In addition, the Charter and private law often protect different interests. For instance, negligence addresses only actual harm, while s. 7 of the Charter also addresses increased risk of harm.  Courts should carefully consider these differences before making a finding of double compensation.

We can look to the Ontario Court of Appeal for examples of a court that has been alert to these distinctions. In its decisions about compensation for solitary confinement, the Court has clearly differentiated between monetary and Charter damages, often awarding both in the same cases.